The art of crystal ball gazing? Assessing digital mergers

Deborah Healey and Rhonda Smith

Competition and Consumer Law Journal

Deborah Healey and Rhonda Smith, ‘The art of crystal ball gazing? Assessing digital mergers’ (2021) 28 Competition and Consumer Law Journal 292

Abstract

While some consider the ACCC’s call for merger reform a case of sour grapes over lost cases, the ACCC is not alone in calling for merger reform. The antitrust authorities in other jurisdictions are also concerned and there have been numerous international reports which have included recommended changes to merger provisions. The aim of this article is to explore the difficulties that anti-competitive mergers involving digital platforms raise in the context of s 50 of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and to discuss possible solutions. First, market definition is often controversial, but when analysing the conduct of digital platform businesses, it appears to raise even more complex issues. Next, the issues encountered in assessing the competition effects of platform acquisitions are addressed, including whether acquisition of a nascent competitor will substantially lessen competition, and the complexity of assessing mergers involving platform ecosystems. Following this, consideration is given to the difficulty of complying with the Evidence Act 1995 (CTH) when the effects of the merger have yet to occur, and the future is dynamic and consequently uncertain. The final section provides suggestions for reforming Australia’s merger provisions.